ADESUBOKAN v. YUNUSA (1971) 1 LRLR Vol 1 321
Citation
(1971) 1 LRLR Vol 1 321
Alternative Citation
(1971) 1 All NLR
225
FACTS
OF THE CASE
The claim against the defendant is for “a declaration
that the probate dated 29/6/66 granted to the defendant in the matter of Yunusa Atanda Saibu (deceased) be
revoked as the said Yunusa Atanda
Saibu was a Moslem, died as a Moslem and left heirs and wives who are all
Moslems. The defendant is the sole executor of the said Yunusa
Atanda Saibu.
The relevant paragraphs of the statement of claim are
–
Paragraph 3. Save that the
defendant will plead res judicata
in respect of the distribution of the estate of the testator by the Native
Court of Zaria, the defendant denies paragraph 5 of
the statement of claim and puts the plaintiff to the strict proof thereof.
Paragraph 7. The defendant
avers that the testator was a native of Lagos and was until his death domiciled
in Lagos; he was employed by Nigerian Railways in 1930 at Ebute-Metta,
Lagos and the Railways transferred him to Zaria where
he died on the 31st August, 1965.
Paragraph 8. The defendant
will contend at the trial of this action that the defendant at all material
times are not bound by nor are they subject to the native law and custom of Zaria and that they are only subject to the native law and
custom of Lagos.
Paragraph 9. The defendant
will contend at the trial that the native law and customs of Lagos permit
natives of Lagos irrespective of their religions to dispose of all their
personal and real property by a will.
Paragraph 10. The defendant
will contend at the trial that the testator did not make the Will dated 7th
July, 1965 under Moslem law, but in accordance with the provisions of the Wills
Act, 1837 an Act of general application throughout the Federation of Nigeria.
Paragraph 11. The defendant
will at the trial rely on the will dated 7th July, 1965 and its probate granted
on the 29th June, 1966.
The learned trial judge in a
considered judgment found the following facts:-
1.
That a Moslem of Northern State of Nigeria is entitled to make a Will
under the Wills Act, 1837 but he has no right to deprive by that will any of
his heirs, who are entitled to share his estate under the Moslem law, of any of
their respective shares granted to them by Moslem law;
2.
That in the case of a Will of moveable, the testator must comply with
his personal law, that is, the native law and custom of his particular
locality, unless such personal law is repugnant to natural justice, equity and
good conscience or incompatible with any law for the time being in force which
does not deprive any person of the benefit of the personal law of the testator;
and
3.
That where the testator is a native within the meaning of the Land
Tenure Law and the Will concerns immovable situated in the Northern States of
Nigeria, the testator must comply with the native law and custom, relating to
devolution, of the place where the land is situated.”
On these facts, the trial
judge proceeded in his judgment to set aside the
probate of the Will.
Unsatisfied with the judgment
of the trial judge, the defendant/appellant appealed to the Supreme Court.
The Supreme Court stated that
it was not properly established before the learned trial judge that the
doctrine of Moslem law as expounded by the Maliki
sect varies between the Northern States and the Southern States of Nigeria as
found by him. In any case, the question hardly arises since there is no
provision of any law which makes Moslem law, whether of the Maliki
sect or any other sect, enforceable, either on its
own, as such, or as part of any customary law, in any of the courts of the
Southern States.
Thus, the appeal was allowed by the Supreme Court and
the judgment of the trial court was set aside.
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